Ackim Muntanga v People (Appeal No 38/2019) [2019] ZMCA 423 (22 August 2019)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction} Appeal No 38/2019 BETWEEN: ACKIM MUNTANGA AND THE PEOPLE 2 AUG 2GiJ -- - \ I RESPONDENT CORAM: Chisanga JP, Majula & Ngulube, JJA On 25th June, 2019 and 22nd August, 2019 For the Appellant Ms K. Chitupila, Senior L egal Aid Counsel For the Respondent Ms M. Kamwi, Senior State Advocate, NPA JUDGMENT MAJULA JA, delive red the Judgment of the Court. Cases referred to : 1. Dorothy Mutale & Another vs The People (1997) SJ 57 (SC), 2. Mutale vs Phiri (7 995-1997) ZR 227 3. Mbinga Nyambe vs The People (2 011) ZR (SC) 4. flunga Kabala a nd John Masefu vs The People (1981) ZR 102 5. David Zulu vs The People (1977) Z. R. 151 (S. C.) J 2 Legislation referred to: Penal Code, Cap . 87 of the Laws of Zambia. 1. Introduction 1. 1. The appellant was charged and convicted of the offence of Murder contrary to Section 200 of the Penal Code, Chapter 87 of the Laws o f Zambia. The particulars of the offence were that the appellant, on an unknown date, but between the 6 th day of February, 2017, and the 12 th day of February, 201 7, at Ndola, in the Ndola District of the Copperbelt Province of the Republic of Zambia, did murder KAREN MWANSA. 1.2. The appellan t denied the charge, prompting a trial in which the prosecution tendered nine (9) witnesses in support of the case, while the appellant who gave sworn testimony was the sole witness in defence. 2 . Evidence in t he trial Court 2 . 1. The first prosecution witness was Dickson Phiri of Sepa Village Chief Nkambo in Masaiti District and also an uncle to the deceased. He testified in the court below that on 6 th February, 2017, around 14:00hrs, Ackim Muntanga 'the appellant' h erein went to his home and complaine d that the deceased, who was his wife, had packed his things from her house, chase d him and told him that their marriage was over. The appellant later left Dickson's house . J3 2.2 . The following day, which was 7 t h February, 2017, around 06:00 hours , the appellant went to Dickson 's home carrying a suitcase and explained that h e was there to bid fare well because h e w a s relocating to Livingstone . 2 .3. On 8 th February, 2017, Dickson received a phone call from his son Kedrick (PW2) who told him that the appellant had phoned him a nd told him that h e had received a p hone call from the deceased. 2.4 . On 9 th February, 2017, while Dickson was at a Shopping Centre called Jealousy Investm ent near Chilese Primary School in Ma saiti District, the appellant approached him and said that he had b een calling the deceased, but that her phone was not ringing . Dickson then asked the appellant about the message he had r eceived from Karen, but in response , the appellant said he had d eleted it. Ther eafter, the appellant left. 2.5. On 10th February, 2 017, between 10:00 hours and 11 :00 hours, while Dickson was on his way to a clinic, from home, he met the a ppellant who informed him that he h a d phoned the d eceased , but that it was a man who answered her phone. Dickson apprised the appellant that he too was calling the deceased's p hone , but it was off. 2.6. The appellant was apprehended on 12th February, 2017 around 01:00 hours b y Dickson and his n ephews after he J4 attempted to flee the scene. He was later taken to the police station. 2.7. The evidence of Kedrick Phiri (PW2), was that on 6 th February, 2017, at 18:00 hours, he was with the appellant drinking Chibuku brew at a bar known as "Bashi Den's Bar". At 19:30 hours, he saw Karen Mwansa "the d eceased" , who was coming from a funeral , passing where they were seated and entering the bar. Arou nd 21 :00 hours, both Kedrick and the appellant left the bar to go to their respective homes. 2.8. The following day, which was 7 th February, 201 7, around 06:00 hours, the appellant went to PW2's home and told him that he was going to Livingstone. 2.9. On 8 th February, 2017, around 18:00 hours, Kedrick received a phone call from the appellant who informed him that he had received a phone call from the deceased telling him that they were going to meet in para dise but that in the m eantime he should take care of her child. 2.10. On 9 th February, 2017, around 08:00 hours, the appellant again phoned Kedrick and requested to m eet him at 22:00 hours. This was in order to establish the whereabouts of the deceased. He feared that she might be dead, and h e wanted to look for her, in case her relatives blamed him. J5 2.11. According to the evidence of Lackness Phiri (PW3 ), on 11th February, 2017 , the appellant found her with another lady by the name of Memory Maseya, at Kalamba Stream, washing clothes, around 09:00 hours. 2.12. Lackness was the appellant's neighbour in Sepa Village of Masaiti District. She testified in the Court below that the appellant appeared as if he was sick. When she asked him why he appeared like that, he mentioned that he was worried about Karen, the deceased, because she loved the children. She fortified him by telling him that the deceased would be found. The appellant then said that Karen was d ead, and that the person who killed h er was a taxi driver. When Lackness asked the appellant whether what h e was saying was true the appellant simply drunk some water from Kalamba Stream and then spat it, saying he had drunk Karen's blood and that if anyone took him some meat, h e would not eat it. It was then that Lackness asked the appellant if he was present when the deceased was being killed. In response, he said that he had worked in a mortuary for a long time. 2.13 . When the appellant gave this answer, Lackness further asked him if the d eceased's body would be picked from Kawama, Nyenyezi or J-Line area. He r esponded by saying that the deceased wa s in the Kalamba Stream. She pressed the appellant for the exact location as in that area there was also a dam. The appellant retorted that the deceased's body was J 6 within the Kalamba Stream, as she had been killed and thrown into the thickets of the stream where she could not be seen by her r elatives. 2.14. He reiterated that if Lackness was searching for the deceased, she should do so in the Kalamba Stream. With these words he left Lackness at the stream. 2.15. Robert Kunda (PW6), a brother to the deceased testified that on 11 th February, 2017, Lackness Phiri informed him about the conversation she had with the appellant concerning where they should s earch for the deceased. He then started off to go to the Kalamba Stream, alone. He followed a small path near the river. Later, he saw a chitenge material which was hang on a tree. He observed a well which had water in it which was on the banks of the Kalamba Stream. He eventually caught sight of the deceased's body floating in the well. He subsequently informed his r elatives and the police. 2 .16. Dr Vlodymir Petrenco, a Pathologist at Ndola Teaching Hospital, conducted the postmortem examination on the body of the deceased on 18 th February, 2017. His findings were that the deceased had severe head injury, and that the skull had multi-fractures and severe hematoma or severe damage . He further stated that there was hemorrhage on the deceased's chest. He concluded that the cause of death was fracture of the skull and hemorrhage. J7 2.17. According to Detective Sergeant Emmanuel Chibe shi (PW9) the arresting officer, the appellant led him to an unfinished house, where he showed him the place where he said h e t ook off the clothes from the d eceased, h a d carnal knowledge of h e r and pushed her t.o the ground, after a confrontation, r esulting in her hitting h e r head on the edge of the veranda. 2.18. We should s t.ate h ere that although this evidence amounted to a confession there is nothing on record to indicate that the trial Judge enquired into the voluntariness or otherwise of the confession. It appears however that the Judge did not take this evidence into account in arriving at h er decision . 3.0 Appellant's Defence 3.1. In his defence, the appellant denied having told Kedrick Phiri, that the deceased had sent him a message saying that he should take care of h er children. He repudiated informing Lackness Phiri, t hat Karen was d ead and that she had b een killed by a taxi drive r . Similarly, the appellant rebuffed the assertion of directing Lackness to search for the d eceas ed's body in the Kalamba Stream. He further refuted t h e evidence of Bertha Ku nda, that h e led police officers to the Kalamba stream whe re the d eceased's clothes were found. 3.2. The appellant, however, admitted that on the day that the d eceased disa ppeared he was drinking Chibuku with Kedrick Phiri, and left the place where they were drinking a t 2 1 :30 J8 hours. He sa id that h e , together with Kedrick and another person drank 10 litres of Chibuku. 4. 0 Findings of the trial Judge 4 . 1. Upon conside ring the evidence adduced b efore h e r, the trial Judge Mula n da J, found that the eviden ce connecting the appellant to the offence was largely circumstantial. The evidence being the cumulative odd behavior of the appellant such as telling Lackness that the deceased was killed by a taxi driver and her b ody lying in the Kala mba stream which eventually turned out to be true. Informing Dickson and Kedrick that he was relocating to Livin gstone immediately following the disappearance of the d eceased to whom h e should have showed some concern having b een one of his wives. Further the conduct of the appellant wh e n h e m et Lackness at Kalamba stream of drinking some water and spitting it sa ying h e h a d drunk the d eceased's blood. Further the verbal exch ange b etween them wh er e h e said the d eceased's b ody was to b e found in Kalamba stream. 4.2. At the conclusion of t h e trial, and in the impugned judgment dated the 1 l t h day of May , 2018 Mulanda J , found the prosecution case proved b eyond r easonable doubt, dismissed the appellant's d efence, found him guilty as charged, convicted him and sente nced him to d eath. J9 5.0 Ground of Appeal 5.1. The appellant is now before us on appeal advancing one ground for our interrogation namely that; the learned trial Court erred in law and in fact when it found him guilty of Murder when an inference of guilt was not the only inference that could be drawn from the evidence on record. 6.0 Appellant's Arguments 6.1. In support of the sole ground of appeal, Ms Chitupila in her written heads of argument submitted that the wrong inference was drawn b y the learned trial Judge in that the evidence did not take the case out of the realm of conjecture so that it attains a d egree of cogency which could permit only an inference of guilt. The learned counsel vehemently argued that there was no evidence of an altercation between the appellant and the decea sed, whose marriage ended on 11 th May, 2016. 6 .2. It was argued that the only evidence connecting the appellant was the claim by Lackness that he told her where to find the body. It was contended that the prosecution evidence left lingering doubts which should have been resolved in favour of the appellant . In support of this contention the cases of Dorothy Mutale & Another vs The People 1 , Mutale vs Phiri 2 and Mbinga Nyambe vs The People 3 were r elied on. JlO 7.0 Respondent's arguments 7.1. In response , the learned Counsel for the respondent equally made spirited submissions. In developing her submissions Ms Kamwi argued that the learned trial Judge was on firm ground when she r elied on the circumstantial evidence that was on the record. She invited us to take cognizance of the numerous unexplained utterances and actions by the appellant which amounted to odd coincidences to support the conviction. Ms . Kamwi called in aid the case of Ilunga Kabala and John Masefu vs The People4 where it was held that odd coincidences if unexplained may be supporting evidence. 7.2. The learned Counsel ended h e r submissions by arguing that the totality of the circumstantial evidence which was before the trial court satisfied the test laid down in the case of David Zulu vs The People5 . She contended that the inference of guilt was the only r easonable inference on the evidence that was before the lower court. We were urged to d ismiss the appeal. 8.0 Issue for determination and analysis of evidence 8 .1. We have considered the ground of a ppeal, evidence on r ecord and the arguments by Counsel. The issue for determination is whether there was strong circumstantial evidence upon which th e appellant could be convicted and the conviction safely upheld by this Court. Jll 8 .2. The test to be applied in a case where reliance is based on circumstantial evidence was laid out in the case of David Zulu vs The People5 where it was held: "It is incumbent on a trial judge that he should guard against drawing wrong inferences from the circumstantial evidence at his disposal before he can feel safe to convict. The judge must be satisfied that the circumstantial evidence has taken the case out of the realm of conjecture so that it attains such a degree of cogency which can permit only an inference of guilt." 8. 3. In this case, the evidence tendered before the trial court indicated that on 6 th February 2017 the appellant complained to Dickson of how the d eceased had packed his things and chased him out from home and that she had declared that the marriage was over. The appellant also demanded for money allegedly wasted on a field on which they had planted ground nuts. This is indicative of the fact that at the time of the deceased disa ppearance there was still a subsisting marriage between the deceased and the appellant, albeit one fraught with marital problems. This evidence was in sharp contrast to the appellant's evidence that his marriage with the deceased had ended on 11 th May, 2016. We therefore hold the view that the submission by the appellant th at the marriage had ended on 11 th May, 2 016, and that there was no altercation with the deceased prior to her disappearance is farfetched. We are of the considered view that the learned trial Judge's rejection of J12 this part of the appellant's defence was grounded on solid reasoning and supported by the evide nce. 8.4. The evidence in this case further reveals conduct post the disappearance of the deceased. On 6 th February, 2017, the deceased wa s seen coming from a funeral. After that the deceased was never seen. The following day the appellant registered a complaint to Dickson that he had been chased and demanded for money for the ground nuts . He was further referred to Prosper a relative to whom dowry had bee n paid for the refund. On this day he also announced his d eparture for Livingstone. 8.5. On Wednesda y 8 th February 2017 Kedrick received a call from the appellant who stated that he had received a message from the deceased. When Dickson requested to see this particular message, the appellant claimed it had been dele ted. The appellant also said he had received a call from Karen who said they were going to meet in paradise. 8.6. On 9 th February, 2017, he called Dickson and said the deceased phone was off. He said his attempts to call the deceased were in vain as her phone went unanswered. 8.7. On 10th February, 2017 the appellant spun another story and said that whe n he called the deceased a male person claiming to be her brother had answered. Jl3 8.8. On 11 th February, 2017 he met with Lackness at Kalamba stream and had what we can best describe as a strange conversation with her. It was from his mouth that h e informed h er that the d eceas ed had been killed by a taxi driver. The b e havior that followed was bizarre in that he drunk water, spat it out and said h e had drunk the d eceased's blood. He went on to give a weird explanation that the deceased h ad been thrown in the thicket of the strea m where she could not b e seen by r elatives. He gave the precise location where her body could be found. A search that was conducted following his utterances, led to the recovery of the deceased's b ody. 8.9. These strands of evidence when put toge ther, coupled with the odd behavior of the a ppellant which subsequently led to the recovery of the body certainly in our view takes the case out of the realm of conjecture. 9. Conclusion 9. 1. We have applied the same tests and principles of law highlighted above to the evidence on record. It is our view that the learned judge correctly analyzed the circumstantial evidence before h er and did not misapprehend any aspect of that evidence. She a lso correctly applied both the requisite tests and principles of law that guide the Court in accepting and acting on circumstantial evidence as a basis for founding Jl 4 a conviction against an accused p erson. In our view, the learned judge arrived at the correct conclusion that the circumstantia l evidence on the record when taken cumulatively met the threshold of pointing irresistibly to the guilt of' the appellant as the person who mur dered the dec<!ased and could not b e explained on any other h ypothesis. 9.2. The upshot of the above assessment and reasoning is that we find no merit in this appeal. The same is dismissed in its entirety. 9.3 . We uphold the conviction and sentence. ·· ·········· ··· ···· ··· ~ ······· ··· ···· ·· F. M. Chisanga JUDGE PRESIDENT ~ . . . . . . . . P. C. M. Ngulube COURT OF APPEAL JUDGE . .... .. ...... . J la COURT OF APPEAL JUDGE